The Fate of Kable

By Craig Over

In late 2014, in Pollentine v Bleijie, the High Court of Australia was asked to consider the application of the principles recognised in Kable v DPP (NSW) through a challenge to the validity of s 18 of the Criminal Law Amendment Act 1945 (Qld). In 1984 the plaintiffs pleaded guilty to a number of counts of sexual offences against a child. Upon completion of their sentences, s 18 of the Act would have seen their sentences extended. The plaintiffs sought declarations from the High Court that the section was repugnant to Chapter III of the Constitution. Unsurprisingly, the scant but emotive media attention paid to this case emphasises the odious nature of the crimes the offenders were convicted of, rather than the broader implications of the case for Australian constitutional arrangements.

Section 18 of the Act provides that, subsequent to a report from two medical practitioners that an offender is ‘incapable of exercising proper control over his sexual instincts’, a judge may exercise a statutory discretion to further detain the offender at Her Majesty’s pleasure. Once this discretion is exercised the determination of termination or continuance of detention is wholly a matter for the Governor in Council. The legislation authorises the continued detention of a person based on prospective behaviour rather than past behaviour; a position that is antithetical to the logic of our legal system (Keyzer, 2008).

In Pollentine, the principle that the legislation was said to infringe was that ‘the Parliaments of the States may not legislate to confer powers on State courts which are repugnant to or incompatible with the exercise of the judicial power of the Commonwealth’ (42). The determination of whether the principle had been infringed required the court to form a judgment as to whether the legislative regime in question negatively impacts on or impedes the maintenance of the institutional integrity of the courts, as repositories of Commonwealth judicial power. In this case their Honours declined to find invalidity, on the basis that the features of s 18 did not infringe the Kable principle. The Court did not elaborate at any length, however, on how it came to this conclusion.

I suggest that the characteristics essential to a proper understanding of Commonwealth judicial power are fundamentally the same as those of State judicial power. Judicial settlement, for instance, is to be exercised in a fair and detached manner; this is so whether the court is a State or Commonwealth court. It is difficult to see how this feature of judicial activity can be fully realised where State legislatures are permitted a wider degree of flexibility in conferring non-judicial functions on their courts.

In this way, Pollentine is not an instance of the High Court recognising that the separation of powers doctrine applies differently at State level. Rather, it is a failure to recognise common judicial characteristics across jurisdictions; the recognition of this commonality would provide for a more desirable and consistent approach to an already well instituted and nationally integrated court structure. This approach would require a broader and stronger application of the Kable principle. Given that the High Court has relaxed the separation of powers doctrine, as set out in Boilermakers (Murray, 2014), this is unlikely to occur.

Whether the High Court is correct in declining to apply the constitutional principle enunciated in Kable, there is little doubt that the full thrust of State power is firmly located in the penal system. No other body of law has such a devastating aptitude to deprive an individual of personal liberty. Yet in Australia, political discourse seems to be marked by the conspicuous absence of any discussion of the peculiar legislative regimes our State Parliaments are permitted to enact. I suspect that most Australians are largely unfamiliar with the complexity of our court structure and make little distinction between state and federal courts.

This seems to be so, at least in part, because the rights Australians enjoy are gleaned, with the assistance of some judicial artistry, from the technocratic structure and text of our Constitution. These rights are splattered across a plethora of constitutional cases that to the ‘average Australian’ are written in mostly unintelligible language. Pollentine is emblematic of a judicial dialogue that places nuanced legal wrangling ahead of broader constitutional principles.

Craig Over completed a Bachelor of Arts in 2012 and is currently completing a Bachelor of Laws at La Trobe University


Keyzer, Patrick, ‘Preserving Due Process or Warehousing the Undesirables: To What End the Separation of Judicial Power of the Commonwealth?’ (2008) 30(1) Sydney Law Review

Murray, Sarah, ‘Giving chapter III back its constitutional mojo?: Lessons from state courts and beyond’ (2014) 40(1) Monash University Law Review

Office of the Queensland Parliamentary Counsel, Principles of good legislation: OQPC guide to FLPs: Institutional integrity of courts and judicial independence (2014)

Victorian Government Solicitors Office, ‘When can State courts be given functions that are a precursor to a controversial executive function?’, VGSO Blog, 26 September 2014

Suggested Citation

Craig Over, ‘The Fate of Kable’, Law and Justice, 15 June 2015 (La Trobe Law School Blog,

Marc Trabsky